Denny v. Randall

• Decision Date: 20 April 1918
• Docket Number: No. 2282.,2282.
• Citation: 202 S.W. 602
• Parties: DENNY v. RANDALL.
• Court: Missouri Court of Appeals

202 S.W. 602

DENNY v. RANDALL.

No. 2282.

Springfield Court of Appeals. Missouri.

April 20, 1918.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Grover Denny against Leslie Randall. Judgment for plaintiff, and defendant appeals. Affirmed.

Hiett & Scott, of Houston, for appellant. Lamar & Lamar, of Houston, for respondent.

STURGIS, P. J.

Plaintiff recovered judgment for $50 damages for defendant's killing his dog by running over it with an automobile. The plaintiff is a stock dealer, and the dog in question was shown to be a well-trained collie of much value in driving and handling stock. The petition charges that while plaintiff was driving along the public road leading from Mountain Grove to Cabool, Mo., in a buggy, accompanied by the dog immediately in front of his team, the defendant approached from behind and, "while running said automobile at a very high and dangerous rate of speed, carlessly and negligently drove said automobile around and near to and in front of the team and buggy of plaintiff at a high and dangerous rate of speed, then and there carelessly and negligently running over and killing the dog of the plaintiff immediately in, front of and near the team of the plaintiff."

In the Instructions given the court charged that it was the defendant's duty in operating an automobile on the public highway to use the highest degree of care which a very prudent person would use under similar circumstances; and that if the jury found that defendant, in passing the buggy of plaintiff, ran at an excessive rate of speed or negligently ran near to and in front of plaintiff's buggy and team, and did not use the highest degree of care which a prudent person would use in passing plaintiff's vehicle and that by reason thereof killed the dog, to find for plaintiff.

The first error assigned here is that this instruction applies the rule of care prescribed by statute, Laws 1911, p. 330, § 9, which by said act is only applicable to operating automobiles on or along public roads and streets or places much used for travel, and that there is no proof that the place of the accident was a public road or place much used for travel. The answer contains a general denial, which defendant says puts in issue the allegation of the petition that the damage in question occurred "on the public road leading from Mountain Grove to Cabool, Mo." If, however, this was an issue at all, it was certainly a well-masked one, for the general denial of the answer is followed by these allegations (italics ours):

"Defendant for other and further answer to plaintiff's petition says that, as he overtook the plaintiff he gave the plaintiff a suitable and audible signal (to the plaintiff), but that the plaintiff paid no attention to said signal and did not turn to the right, but kept in the middle of the road, thereby forcing the defendant into the ditch on the left of the road. Defendant further says that, if the plaintiff had not compelled the defendant to take said ditch, he could have seen said dog in time to have averted the injury to the same."

The reading of the record also convinces us that both parties proceeded throughout the trial on the assumption that the place of the accident was on a well-known public road called in the evidence the "Ozark Highway." Both parties were evidently well acquainted with the locus in quo, and so, likely, was the court and jury, and the parties assumed this throughout the trial. Thus the plaintiff in his evidence speaks of the place of the accident being "the Ozark Highway and the road makes a turn here." The defendant's witness Payne, who was riding with him in the automobile at the time, says they were "on the road between Mountain Grove and Cabool." The evidence also shows that this was a well-improved and graded road; that it was nearly level and smooth; that the "road is graded 26 feet, and the travel is about the middle of...